As I wrote in
an earlier blog, section 58 of WESA now gives the Court the
power to order that a document that does not meet the formal
requirements of a Will is nevertheless effective as a Will. This
power is called a "dispensing power". Last week, the
Court exercised this dispensing power again, but on very different
facts from those in our earlier blog. In the latest decision (the Estate of
Young), there was in fact a properly executed Will, which was
not in question in the application. However, there were also two
separate documents which could arguably be seen as testamentary in
nature. The Executor properly sought directions from the Court. In
the Estate of Young decision, the Court found that only
one of the documents met the necessary threshold to be fully
effective as though it was part of the Will. The second document
did not meet the threshold and, accordingly, had no effect.
From the two cases decided to date under WESA, we can take the
The starting point is the George
v. Daily decision from the Manitoba Court of Appeal. This is
not surprising. Manitoba Courts have had a similar dispensing power
since the 1990s. The Manitoba Court of Appeal wrote a comprehensive
decision tracing the reasons that Wills legislation has
traditionally required certain formalities be met, considering
similar legislation in Australia (where it has been in place since
the 1970s), and identifying the threshold that must be met in order
for a document to be effective as a Will. Other Canadian provinces
have used George v. Daily as a starting point when their
legislatures gave a dispensing power to their Courts.
The key question in BC is the same as
in Manitoba: whether the document expresses the deceased's
"deliberate or fixed and final expression of intention as to
the disposal of his/her property on death".
The concern that the dispensing
provision will become a "rubber stamping" by the Courts
of non-testamentary documents to be recognized as Wills is met with
the Court's careful review of the facts and the law. In fact,
in the second decision, the Court held that one of the documents
did not have testamentary effect.
Each application under section 58
will turn on the unique facts.
The burden of proof on such an
application is the civil standard (balance of probabilities), as
opposed to the higher standard in criminal law (beyond a reasonable
doubt). This finding is consistent with the British Columbia Law
Institute recommendation in its report "Wills, Estates and
Succession: A Modern Legal Framework" Note that this differs
from certain of the statutes in Australia, which require that the
higher, criminal standard be met in order for a document to be
effective as a Will.
The existence of a signature on the
document is a compelling factor. It not only helps to establish
authenticity of a document, but signing a document demonstrates
approval of the contents and finality of intention.
In the Estate of Young, the Court also noted that
section 58 may be used only to cure deficiencies in the execution
of the document; it is not used to cure testamentary incapacity or
I expect that we will see further applications under section 58
as we approach the first anniversary of WESA. I am aware that a few
of my colleagues in the Estate bar are currently preparing such
applications, and am interested in seeing what unique to BC nuances
develop in this fascinating new power provided to our Courts. Stay
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It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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